Gujarat High Court
Abhishek Kumar Mishra S/O Ashok Kumar ... vs Ankita Ghanshyam Chauhan D/O Ghanshyam ... on 11 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/1775/2023 JUDGMENT DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1775 of 2023
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2023
In
R/FIRST APPEAL NO. 1775 of 2023
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2023
In
R/FIRST APPEAL NO. 1775 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
ABHISHEK KUMAR MISHRA S/O ASHOK KUMAR MISHRA
Versus
ANKITA GHANSHYAM CHAUHAN D/O GHANSHYAM KANAHIYALAL
CHAUHAN
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Appearance:
PARTY IN PERSON(5000) for the Appellant(s) No. 1
MS. YASHMA R MATHUR(6374) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
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NEUTRAL CITATION
C/FA/1775/2023 JUDGMENT DATED: 11/12/2023
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HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 11/12/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The appellant - original plaintiff has filed the present appeal challenging the impugned judgment and order dated 29.07.2021 passed in Civil Miscellaneous Application No.29 of 2021 by the learned Judge, Family Court No.4, Vadodara (hereinafter be referred to as "the trial Court").
2. Short facts leading to the present appeals are as follow:
2.1 The marriage between the appellant and the respondent was solemnized on 24.01.2011 as per the Hindu rites and rituals at Vadodara and out of the said wedlock, they have two daughters namely Shagun and Shubh. It is the case of the appellant that the respondent is directly involved in humongous corruption activity at Dudhsagar Dairy in collusion with Vipul Chaudhary and others and, thereafter, the respondent and her family members have illegally detained his daughters and threatened him not to inform police on their mega scale scame Page 2 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined at Dudhsagar Dairy in Mehsana. That the appellant's daughters are detained as shield by respondent and her accomplices so that the appellant can be stopped informing authorities on financial scandals and contempt of orders of Hon'ble Supreme Court and Hon'ble Gujarat High Court. That Shubh and Shagun are aged about 5 years and 8 years respectively at the relevant time and both are under illegal detention of the respondent and Mrs.Hemlata G. Chauna. It is contended that many days since they are taken away from the appellant to threaten him not to expose corruption done by respondent at Dudhsagar Dairy.
2.2 The appellant moved an application seeking custody of the daughters before the Family Court, Vadodara and, thereafter, he had filed many litigation either before this Court or before the Hon'ble Supreme Court.
2.3 The Family Court, Vadodara rejected the application for custody filed by the appellant. Being aggrieved and dissatisfied with the impugned judgment and order, the present appeal is filed by the appellant.
3. We have heard extensively the party-in-person Abhishek Page 3 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined Kumar Mishra, appellant herein and Ms.Yashma Mathur, learned advocate for the respondent.
4. Party-in-person Abhishek Kumar Mishra has submitted that the trial Court has committed an error of law and facts in passing the impugned judgment and order. He has submitted that the trial Court has committed an error in not granting the custody of his daughters. He has submitted that it is an admission on the part of the respondent that she was head of HR, commercial and IT in Dudhsagar Dairy and as per the impugned judgment and order, the appellant and the respondent were living together till 14.10.2019 and on the same day i.e. on 14.10.2019, the respondent was moved to Mehsana on promotion and assumed the same position, whereas, he informed the police authorities that the Dudhsagar Dairy scam had happened. He has submitted that he had filed an application before the Principal Judge, Family Court for transfer the case from one Court to another Court, therefore, the case was transferred on 19.06.2021 to another Court and but surprisingly, on 21.06.2021, the case was again transferred the very same Court. He has submitted that he had filed an application under Order XVI and XVIII of the Civil Page 4 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined Procedure Code for calling his witnesses before the Family Court which came to be rejected by the trial Court on 28.06.2021. The party-in-person has submitted that he had filed an application under Section 151 of the Civil Procedure Code for directing the respondent to handover the custody of the daughters to him at 10.00 a.m. and, thereafter, he will handover the daughters back at 6.00 p.m. on the same day. He has submitted that the respondent was remained absent before the trial Court proceedings, the details of which is mentioned in para-5 of the application. The party-in-person has submitted that in the said application, he has categorically mentioned that despite being unwell and giving application for grant of leave on accord of post corona to appear on 21.06.2021, he appeared before the trial Court on 19.06.2021 to finish his cross-examination, however, no cross-examination was done and despite of this fact, the trial Court has wrongly observed that he refused to cross examine the respondent. The party-in-person has submitted that he has filed affidavit and the written statement before the trial Court on 22.04.2021. He has submitted that an FIR for the offence under Sections 498A, 507 etc of the Indian Penal Code and under Page 5 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined Section 67 of the I. T. Act came to be filed against him which is absolutely illegal and arbitrary. He has submitted that his family is suitable to have welfare of the society and even there is no any dowry harassment at his house also. The party-in-person has referred to the cross-examination of the respondent at Exhibit 65 and has submitted that no any reply was given with regard to the medical certificate and no medical treatment was taken on suicidal thought. The party-in-person has referred to the psychology medical certificate of the respondent and has submitted that since last 3-4 months, she was untreated for such sickness from 2013. He has submitted that in September 2009, Vipul Chaudhary was harassing the respondent and she made a complaint against him. The party-in-person has urged this Court that the appeal be allowed and the impugned order passed by the trial Court be quashed and set aside and the custody of the daughters be given to him.
4.1 In support of his submission, the party-in-person has relied upon the following decisions:-
1. Balraj Taneja and another Vs. Sunil Madan and another rendered in (1999) SCC 8 396;Page 6 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023
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2. Ramendrasinh Jaysinh Kushvah Vs. State of Gujarat rendered in Criminal Misc. Application No.12699 of 2020 dated 11.02.2021;
3. Rohith Thammana Gowda Vs. State of Karnataka and others rendered in Civil Appeal No.4987 of 2022 dated 29.07.2022;
4. Mr. S. Anand @ Akash Vs. Ms. Vanitha Vijaya Kumar and another rendered in A. No.248 of 2011 in O.P. No.12 of 2011 dated 21.03.2011;
5. Vivek Singh Vs. Romani Singh reported in (2017) 3 SCC 231;
6. Mukesh P. Gada Vs. Purvi M. Gada and others rendered in Writ Petition No.3558 of 2015 dated 17.02.2016;
7. Sumit Anil Arora Vs. Rashmi Sumit Arora rendered in Writ Petition No.12183 of 2013 dated 02.01.2014;
8. Kunwar Singh Bedi Vs. Sonia Kunwar Singh Bedi rendered in Petition No.A-849 of 2011 dated 11.06.2014;
9. Nil Ratan Kundu and another Vs. Abhijit Kundu rendered in Civil Appeal No.4960 of 2008 dated 08.08.2008;
10. Kumar V. Jahgirdar Vs. Chethana Ramatheertha rendered in Civil Appeal No.619-620 of 2004 dated 29.01.2004;
5. In the case of Mr.S. Anand (supra), the Madras High Court has held and observed in para 39, 43 and 44 as under:-
"39. Though the request of the first Respondent actually put me in a predicament, I acceded to her request, in view of the fact that today in all child custody cases, the same Page 7 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined problem is cropping up. In 90% of the cases which I have come to handle in the recent past, every other child refuses to go from the parent with whom he is residing, to the other parent. Unfortunately, in most of the cases, we, the Judges plead helplessness, whenever the children refused to go with one of the parents. This has happened especially in cases where the children are aged more than 5 years. Judges, who are not experts in child psychiatry, tend to believe the views expressed by children in their chambers as amounting to "intelligent preference", though at times they happen to be mere "intelligent manipulations". In U. K., a service known as "Children and Family Court Advisory and Support Service" (CAFCASS) is available, to assess if the views expressed by children could be regarded as "intelligent preference".
43. However, if a Court pleads helplessness on the ground that a child of 6 years or 7 years, refuses to go with one of the parents, it would, in my opinion, amount to an abdication of the responsibility that is invested with the Court. If a Court does nothing more, than merely recording the unwillingness of the child to go with one of the parents, the Court would be seen as surrendering its responsibility to the will of a small child. In such an event, the preference that the child makes, would replace the judgment that a Court is obliged to render.
44. Therefore, unable to go solely on the basis of the unwillingness of the child and also with a view to find out the truth, I acceded to the request of the first Respondent - mother and passed an order on 2.2.2011, directing the applicant to take the child to Dr. V. Jayanthini, head of the Department Child Guidance Clinic attached to the Government Children's Hospital, Chennai, for an assessment. The purpose of the assessment was to find out (i) if the child was acting under external influences." 5.1 In the case of Mukesh P. Gada (supra), the high Court of Judicature at Bombay has held and observed in para no.22 and 23 as under:-
Page 8 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023
NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined "22. When the present petition was instituted, even this Court, did not deem it appropriate to disturb the education schedule in the mid academic year. This Court, had also appreciate the submission of Ms Dey with regard to interviewing the children in order to ascertain their wishes.
However, it was felt that there is necessity to have some level playing field, before the children are interviewed. From the conduct of the Respondent-wife, it was quite apparent that the Respondent-wife was exerting considerable influence upon the children and in these circumstances any personal interview, might not have been really useful in ascertaining the true and uninfluenced wishes of the children. For this purpose, from time to time, the orders were made granting access to the Petitioner, at least, on weekends. However, the Respondent-wife defied all such orders and brought about a situation, where, the Petitioner-father was denied access even on two or three weekends in respect of which orders were made. In these circumstances, no useful purpose would have really been served by personally interviewing the children. Besides, Ms Dey is obviously not right in her submission that the 'wishes of the children' constitute paramount consideration in such matters.
23. The 'wishes of the children', is no doubt, one of the important imputs in a matter of this nature. However, the 'welfare of the children' or the 'welfare principle' remains paramount consideration in jurisdiction of this nature. The 'wishes of the children' is no doubt, one of the relevant parameters to be taken into consideration, However, this is neither the only parameter or the paramount consideration. Besides, 'wishes of the children' are not to be confused with some pre-prepared statements of the minor children, as a result of tutoring and excessive influence of the custodial parent. Before, a decision based upon 'wishes of the children' is arrived at, regard must be had to the age and maturity levels of the children, the circumstances in which the children are placed, the children's perception as to their own welfare, possibility of tutoring, dominant position of the custodial parent and other such considerations. Unless, as far as possible, circumstances conducive to the exercise of intelligent preference by the children are brought about, it is not always safe to place any excessive emphasis upon the otherwise important parameter 'wishes of the children'". Page 9 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023
NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined 5.2 In the case of Sumit Anil Arora (supra), the High Court of Judicature at Bombay has held and observed in para no.7 as under:-
"7. I cannot accept such a submission. There is no doubt that the wishes of the child are important; but can they be said to be determinative in all situations and in all cases? There are many contexts in which an impressionable child, though not an infant but one who can be presumed to be reasonably sentient, might express a wish. But those are the wishes of a yet not fully formed mind, one that is susceptible to a variety of influences. It is certainly a consideration to be kept in mind; it cannot, however, bind the hands of a court."
5.3 In the case of Rohith Thammana Gowda (supra), the Hon'ble Supreme Court has held and observed in para no.8 as under:-
"8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned'. In other words, Page 10 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits."
6. Per contra, Ms.Mathur, learned advocate for the respondent has submitted that the respondent has opposed the present appeal mainly on the ground that the appeal is not maintainable and, therefore, the trial Court has not committed any error while passing the impugned judgment and order. She has submitted that appeal is filed for custody of both the minor children and the matrimonial dispute was started in the year 2019, which has resulted into many litigation between the parties. She has submitted that the appellant has filed frivolous application/s right from the year 2020 till today and since last three years, the children have seen the dispute which has been arisen between the parties and the same has in somehow affected the children directly. She has submitted that the anguish and distance has been created because of the matrimonial dispute most probably by the appellant. She has submitted that this appeal is involving around less than the grounds which are mentioned in the appeal. She has submitted that the are less involved grounds are the Page 11 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined children and the welfare which is more revolving around the allegations upon the trial Court because it has passed an order favouring the respondent and the children having given as a rightful custodian. She has submitted that although the visitation right has been taken care of at the interim stage as well as at the final stage as well the visitation rights are also exercised. She has submitted that according to the appellant, the respondent has never been present before the trial Court, but on perusing the rojkam, the respondent was present before the trial Court and the appellant is only focusing on the dates of the year 2021, which was a period of second pandemic and at that time, the appellant was pointed out that the respondent was not present along with the daughters and now by misusing all these dates, the appellant is trying to mislead this Hon'ble Court in all possible manner. She has submitted that the submission canvassed by the appellant is absolutely irrelevant and not related to the facts of the case. She has submitted that the matter was transferred to Vadodara Court from Gurgaon Court in the year 2019 and the appellant approached the Hon'ble Supreme Court for more than three to four occasions for the Page 12 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined same prayer, as also, approached this Court to expedite the matter due to pandemic reason. She has submitted that there was no delay on the part of the respondent and/or the Court and the matter was heard and the chief examination and the cross- examination were duly conducted. She has submitted that the present appeal is misconceived and frivolous and even the appellant has made vague statement against the respondent and her family members and the remarks which could be malice the reputed family and the entire family is well educated. She has submitted that the Coordinate Benches of this Hon'ble Court are concerned, they have made extreme efforts to the father - appellant herein to meet the children. She has submitted that the statement of the appellant that he had not met the children for 1300 - 1400 days is absolutely misleading. She has referred to the report of the FLS and submitted that the psychological conditions of the minor children are good and they are capable and intelligent enough to see the situation of the mother - respondent herein and the respondent is better position right now and working well and the children are happily living with the mother and however, this litigation is torturing them. She has Page 13 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined submitted that the case was also referred to Baroda Nigam Authority where the mediation was conducted. She has submitted that the respondent has earned more than Rs.80 Lakh and has job securing herself and her children and she has no any financial support from her parents. She has submitted that an anticipatory bail was granted in favour of the appellant on the conditions that he will not interfere with or harass or cause any kind of problem. She has submitted that again the cancellation of bail came to be filed by the respondent and the anticipatory bail was granted in favour of the appellant but he will continue to threat the respondent by sending email and messages. She has submitted that an order of "get out" came to be passed by the Travel Company where the appellant was working and while passing the order by this Court in Criminal Revision Application No.25 of 2020 wherein it was also observed that the appellant was terminated so this is the conduct on the part of the appellant. She has submitted that Special Criminal Misc. Application No.2697 of 2020 was filed by the appellant, which is pending before this Court, wherein the reply has been filed by the otherside as also by the CBI and now nothing is proved and Page 14 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined no any evidence led by the appellant before the trial Court in the custody application. She has submitted that the appellant filed frivolous applications at exhibit 15 to 31 before the trial Court in a span of four months out of which most of the applications came to be rejected. She has further submitted that there was private chat between the party-in-person and the respondent with regard to the habit of taking liquor by the appellant and an FIR dated 01.01.2022 came to be lodged against the party-in-person under the provisions of the Prohibition Act. She has submitted that the appellant has filed an application for examining the witnesses through the video conferencing where learned advocate for respondent opposed the video conferencing as physical functioning has been started. She has submitted that the party-in-person had filed application along with 20-21 documents, after filing of the purshis, which came to be rejected by the trial Court. She has submitted that the appellant raised finger against the advocate of the respondent, who was conducted the cross-examination, saying that he had given an application as warning and instruction to the otherside advocate to maintain decorum which was also rejected. She has submitted Page 15 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined that the appellant filed urgent application under Section 151 of the Civil Procedure Code for custody of the children when the trial was already conducted and the said application was filed 20 days prior to the impugned judgment and order. She has submitted that an application under Section 11 of the Civil Procedure Code was filed by the appellant before the trial Court for production of the bank accounts of the respondent, but there is no authenticity of such accounts and even no bank manager has been examined. She has submitted that an application came to be filed by the learned advocate for the respondent before the trial Court for examination of the appellant on 01.07.2021, still the appellant wanted to stay against the proceeding. She has submitted that the appellant had filed application inter ali stating that the matter has not been proceeding further. She has also submitted that so far as flimsy remarks and prerogative statements against the family of the respondent are concerned, the appellant has no any evidence to show that the father, mother, brother or sister etc are involved in corrupt practice. With regard to the allegation for not giving the proper treatment to the daughter at the house of the respondent, she has Page 16 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined submitted that the proper treatment was given to the daughter at the house of the respondent better than what the appellant is going to give and the parents of the respondent are not at Surat. She has submitted that the divorce history of the family of the respondent given by the appellant would not be maintainable and as far as the allegation against the respondent is concerned, now she is working in L & T at Surat. While referring to the report of the FSL dated 18.11.2022, she has submitted that the children are in absolutely stable in mental health and happy with the mother and the family. She has submitted that with regard to the allegation that the respondent was found in Dudhsagar Dairy in an obscene condition is concerned, the police inquiry was made and it was discarded that nothing has been happened in the dairy. She has submitted that the divorce petition filed on 05.04.2021 and the impugned judgment and order was passed on 29.07.2021 in the present case. She has referred to the rojkam and submitted that the rojkam clearly indicates that the respondent was regularly remained present before the trial Court and even if the respondent was not present, the advocate was present on her behalf and it was the second waive of pandemic Page 17 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined and, therefore, the respondent was sometime unable to remain present before the trial Court. While referring to the cross- examination of the respondent wherein she was asked the questions relating to the bonus scam and medical certificate, she has submitted that nothing has been proved in this regard. She has submitted that the appellant has produced the photographs which were taken in his personal capacity and he is narrow minded person. She has submitted that the FIR which has been filed against the appellant by Gurgaon Police Station under Section 534 for outrages of modus operandi of public servant. She has also submitted that the emails sent by the appellant to the respondent are the part of the record are outrages of modus operandi which malice the reputation of the respondent. She has submitted that knowing the nature and conduct of the appellant, it appears that he is vindictive person and the children are not safe with him and the video chat which was done by the appellant is 90 second dated 03.08.2021. She has submitted that the appellant filed an application under Section 156(3) of the Criminal Procedure Code before the Magistrate Court, Vadodara which came to be rejected by the learned Magistrate and against Page 18 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined the said order, criminal revision application was filed by the appellant which was also rejected and applications under Section 156(3) of the Criminal Procedure Code for number of sections and for education documents of the respondent that they were forged and bogus, were rejected by both the Courts below. She has submitted that the present appeal being meritless deserves to be dismissed.
6.1 In support of her submission, Ms.Mathur, learned advocate has relied upon the following decisions:-
(1) Nil Ratan Kundu and another Vs. Abhijit Kundu reported in (2008) 9 SCC 413;
(2) LT Col Iqbal Bahadur Tegh Bahdur Dutt (Retd) Mrs. Sandhya Iqbal Bahadur Dutt Vs. Dr. Dentist MRS Ann S Dutt rendered in First Appeal No.694 of 2019 dated 30.07.2021 by the Division Bench of this Court;
(3) Writ Petition No.2048 of 2023 rendered by the Bombay High Court dated 21.07.2023;
(4) Adarsh C. B. Vs. Aswathy Sidharthan dated 03.10.2023 rendered in Special Leave to Appeal (C) No.2437 of 2023;
7. In the case of Nil Ratan Kundu and another (supra), the Hon'ble Supreme Court has held and observed in para no.53 to Page 19 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined 59 and 71 to 73 as under:-
53. Having given anxious and thoughtful consideration to the facts of the case and applying well settled principles referred to above, we are constrained to observe that the orders passed by the Courts below are short of the fundamental principles on more than one ground.
54. The approach of both the Courts is not in accordance with law and consistent with the view taken by this Court in several cases. For instance, both the Courts noted that the appellants (maternal grand parents) are giving 'all love and affection' to Antariksh but that does not mean that Antariksh will not get similar love and affection from his father. It was also observed that appellants no doubt got Antariksh admitted to a well reputed school (St. Xavier's Collegiate School, Kolkata). But it could not be said that the father will not take personal care of his son. Both the Courts also emphasized that the father has right to get custody of Antariksh and he has not invoked any disqualification provided by 1956 Act.
55. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.
56. In Rosy Jacob, this Court stated; (SCC p. 854, para 15) "15.....The contention that if the husband (father) is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly may at times be somewhat misleading".
It was also observed that the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The father's fitness cannot override considerations of the welfare of the minor children. Page 20 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023
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57. In our opinion, in such cases, it is not the 'negative test' that the father is not 'unfit' or disqualified to have custody of his son/daughter is relevant but the 'positive test' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian.
58. Though this Court in Rosy Jacob held that children are not mere chattels nor toys, the trial Court directed handing over custody of Antariksh 'immediately' by removing him from the custody of his maternal grand-parents. Similarly, the High Court, which had stayed the order of the trial Court during the pendency of appeal ordered handing over Antariksh to his father within twenty four hours positively. We may only state that a child is not 'property' or 'commodity'. To repeat, issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem.
59. At another place, the trial Court noted that a criminal case was pending against the father but the pendency of the case did not ipso facto disqualify him to act as the guardian of Antariksh. The Court stated; "If ultimately the petitioner (father) is convicted and sentenced in that case, the OPs (maternal grand-parents of Antariksh) will have the scope to inform the fact to the Court and to pray for change of the Court's decision". The Court made a 'comparative study' and observed that it had 'no hesitation' in holding that the present and future of Antariksh would be better secured in the custody of his father. It then stated;
"Antariksh should be, therefore, immediately removed from the custody of OPs (Maternal grand-parents) to the custody of the petitioner (father)". (emphasis supplied)
71. In the instant case, on overall considerations we are convinced that the Courts below were not right or justified in granting custody of minor Antariksh to Abhijit- respondent herein without applying relevant and well- settled principle of welfare of the child as paramount Page 21 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined consideration. The trial Court ought to have ascertained the wishes of Antariksh as to with whom he wanted to stay.
72. We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grand-parents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father-respondent herein.
73. For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The application filed by the respondent Abhijit for custody of his son Antariksh is ordered to be dismissed. In view of the facts and circumstances of the case, however, there shall be no order as to costs."
7.1 In the case of LT Col Iqbal Bahadur Tegh Bahdur Dutt (Retd) Mrs. Sandhya Iqbal Bahadur Dutt (supra), the Division Bench of this Court has held and observed in para no.10 to 20 as under:-
"10. We have heard the parties at length and perused the record. We ourselves held 2 or 3 video meetings in this matter including the meeting with the girl child 'Dhairya' herself with her mother from their residence and Appellant
- grandfather (and also father Major Saurabh Dutt on one occasion.)
11. We are of the considered opinion that the welfare of the child is an overriding consideration for the Court in such matters of visitation rights. The tender age and psychology of the child cannot be allowed to be prejudiced or negatively impacted by the cross-fires of allegations and counter allegations. The matrimonial disputes between the Page 22 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined adults is a complex social problem and the most prejudicially affected persons are the children born out of such wedlock which broke or developed cracks in it. The loving parents are the best friends of the children born out of the wedlock and if the parents constantly fight, the children always fail to understand the real cause of the same but are mentally torn by such verbal and physical fights in front of their eyes. No mathematical measurement of such negative impact can be jotted down for assessment but it is certain that children of tender age in such situations carry a permanent scar on their mind and that is most unfortunate fruit of such fights which even educated and qualified adults fail to perceive fully and bury their disputes for the benefit of minor children in their young tender age.
12. In the present case, this Court itself faced the dilemma. On the one hand, the grandparents whose natural love and affection for the grandchild cannot be found to be sullied by any ulterior motive or negative feeling for the child, howsoever harsh the fight between their own son and daughter-in-law could be and, therefore, their blessings, love and affection for the grandchild should always be considered to be pure and natural.
13. On the other hand, the mother of the child, one of the parties to the matrimonial dispute with her husband, is also torn between the two. For her own reasons, she might be in a disarray of relationship with her husband which we are not required to go into in detail in the present Appeal pertaining to visitation rights of the grandparents only and on the other hand, her emotional bondage and duty to take care of her own girl child 'Dhairya' cannot be over emphasized. There is nothing on record either in documentary form or otherwise which could establish in any manner that the Respondent - mother - Dr.Ann S. Dutt is unable to take good care of the child 'Dhairya' aged 9-10 years.
14. After making our best efforts for amicable settlement with 2 or 3 video meetings and even directing the physical meeting between the grandparents, father and child, which took place at the residence of the Respondent - mother, the result of that was found to be without any positive development and, therefore, in our last order dated 22.6.2021, we had to stop the visitation rights of the grandparents and father in the best interest of the girl Page 23 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined child 'Dhairya'.
15. The aforesaid dilemma continues even now.
16. We are, therefore, of the considered opinion that such matters are not resolved by any kind of directions and compulsory meetings by giving visitation rights to the parents or grandparents even appreciating their earnest and natural desire to shower their love and affection, care and blessings to the grandchild nor we can force the Respondent - mother - Dr.Ann S. Dutt by a mandamus to make her child meet the grandparents on the given dates or on a specified periods contrary to her own desire. The child herself being a minor but her tender age of 9 years only, she cannot be subjected to any mandamus directions of this Court. Such problems are best resolved by the own volition of the parties concerned or the family members and above all, the child herself. Since the child 'Dhairya' presently is only 9 years, in our considered opinion, we feel that no mandamus direction can be given to the Respondent - mother - Dr.Ann S. Dutt or the child 'Dhairya' at this stage, per force of the Court's order, to meet the grandparents or father Major Saurabh Dutt.
17. We also do not find any ground to take cognizance or punish the Respondent - mother - Dr.Ann S. Dutt under Contempt Law as argued by Appellants.
18. We express our respect for the feelings and stature of the grandfather and the father as they both are Army Personnel, the grandfather a retired Lieutenant Colonel and father a serving Major and we definitely hope and expect that they belong to a very disciplined and educated background and the grandmother is also a Teacher in the school. Therefore, possibly no harm can be caused to the child if the child visits them or is given in a temporary custody of the grandparents. But, we are afraid, we cannot do that by a mandamus as no force in such matters would yield good results for the child herself, there being no dispute for both the sides themselves that they want the best interest of the child to be protected and safeguarded.
19. Therefore, we are unable to grant any visitation rights to the Appellants at this stage, at least till the girl child 'Dhairya' attains majority, which as per her birth-date 12.4.2012 she will be achieving on 12.4.2030. After her achieving the adult age, she would be free to decide on her Page 24 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined own whether to meet her father and grandparents. For the interim period till her adulthood, we leave it free for the Appellants - grandparents and father to make their friendly efforts through convenient time phone calls or emails, for seeking the cooperation of the Respondent - mother - Mrs.Ann S. Dutt and if the girl child 'Dhairya' gives her willing consent to meet the grandparents or the great grandmother even for a few minutes, we would express our desire and hope that the Respondent - mother - Dr.Ann S. Dutt will cooperate and take suitable steps for meeting of 'Dhairya' with the grandparents and great grandmother on a few occasions, say on Festivals. Since the Respondent
- mother is a qualified person being a Dentist Doctor, we hope and expect that keeping aside her matrimonial dispute with her husband Major Saurabh Dutt, she will also appreciate the natural desire of the grandparents to meet their granddaughter 'Dhairya'. But as indicated above, no force or mandamus direction of the Court can be given for the same.
20. In somewhat similar circumstances, we have taken a similar view as aforesaid in another case in First Appeal No.3019 of 2018 (Suryakant S/o Banjrang Lal Goel v. Richa D/o Shambhulal Agrawal) decided on 9.7.2021, in which the biological father living in Canada wanted to have continued visitation / talking rights with his daughter, aged 13 years, who was living with her mother, who re-married with another person and was living in Ambaji, Gujarat and after obtaining a Report from a Child Psychologist, we considered it appropriate to suspend those visitation / talking rights given to the biological father living in Canada till the minor girl child "Rashi' achieved her adulthood. Relevant Para.4 to 7 of that judgment rendered recently by us are also quoted below for ready reference :
"4. We also requested Ms.Richa, now married to Mr.Lakshman Agrawal and Ms.Rashi to join this meeting as we could not readily get into contact with Appellant Mr.Suryakant Goel as he lives in Canada through video meeting today and briefly interacted with them. After discussion with learned counsel also and aforesaid interaction with Ms.Richa and Ms.Rashi and both learned counsel appearing on behalf of the parties all of them fairly agreed with the proposed order which we indicated to all the parties and learned counsel in the video meeting. This meeting, the other counsels appearing in other cases in our Board were kept in the Waiting Hall.Page 25 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023
NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined
5. Upon perusal of the Report of Dr. Khushnuma Banaji, Clinical Psychologist, interaction in the Court with Ms.Richa and Ms.Rashi and both the learned counsels, we are of the considered opinion that for the present, the visitation / talking rights given to the biological father of the child Ms.Rashi of Mr.Suryakant Goel need not continue, as it may have adverse psychological effect on the child Ms.Rashi who is of tender age now but she appeared to be having clear and sufficient understanding of the life as she told that she is presently in 9th standard only but want to become Scientist and intends to join NASA. The said girl RASHI is now proceedings towards her adulthood and we, advisedly, do not think it proper to disturb her equilibrium or peace of mind as well as the present family of Ms.Richa who is living with her husband Mr.Lakshman Agrawal at Ambaji happily with other two children of Mr.Lakshman Agrawal from his previous wife.
6. The family overall appears to be in happiness and good financial condition. Therefore, the welfare of child Ms.Rashi can very well be taken care by the present family where she is living.
7. Accordingly, we dispose of this Appeal itself and connected Civil Applications by removing the part of the order of the Family Court below quoted above (Para F) with regard to the visitation / talking rights given to the biological father Mr.Suryakant Goel. The said position will continue and we leave it absolutely to the discretion of the child Ms.Rashi who, after becoming the major viz. achieving the age of 18 years, may take her own voluntary decision about having talking terms or connecting in any other manner with the Appellant Mr.Suryakant Goel, Canada and we may make it clear that no force of whatever nature shall be put on the said child Ms.Rashi in any manner for the said purpose."
7.2 In Writ Petition No.2048 of 2023, the Bombay High Court has held and observed in para no.18 to 24 as under:-
"18. It is now well settled position in law that while Page 26 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined considering the issue of custody of the minor, the paramount consideration is the welfare of the minor. Viewed from that aspect, considering the age and gender of the child and taking into consideration the facts of the case, in my view, at this stage, it is in the welfare of the child that the interim custody is granted to the mother. As indicated above the comfort of the child is one aspect of the welfare of the child. The word "Welfare" is to be understood in the widest sense taking within its fold the physical and mental well being, health, comfort and overall social and moral development of the child. All that is essential for a well balanced upbringing of the child amounts to welfare of the child.
19. It needs to be borne in mind that the girl child aged about 8 years would be undergoing hormonal changes and also physical changes and as such much care has to be taken during this phase of growth of the girl child and the paternal grand mother or the paternal aunt cannot be a substitute to the mother who is also a qualified doctor. During this phase of life, the girl child requires care and attention of a women who would be better equipped to understand the process of transformation which the girl child will undergo and as such, the mother at this stage is preferred against the father.
20. It is no doubt that in the present case, both the parents are extremely attached to the child and wants her well-being and therefore, it is expected of both the parents that they work towards providing an amiable environment for so that she grows up into a well balanced and healthy child.
21. Apart from the allegations as regards the mood swings of the child and reluctance to meet the mother there is no reason which has been brought to fore so as to set aside the order of interim custody which has been handed over to the mother. The only serious allegations are about her adulterous relationship which at this stage are only allegations and is to be proved during the evidence. In that context if the Respondent can be provided with weekend overnight access and visitation rights, then it does not appeal to reason that the same person cannot be granted interim custody of the child.
22. Before considering the decisions relied upon by the parties, it may be noted that the common thread that runs Page 27 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined through all these decisions is that it is the welfare of the child which is of paramount consideration. In my opinion, in matters regarding custody of the child, each case is required to be decided on its own merits as little change in facts may make a sea of difference. Turning to the decision of the Apex Court in the case of Sheila B. Das Vs. P. R. Sugasree, in that case the Family Court had directed to the mother to hand over the custody of the child, who was at per-puberty stage, to the father which was upheld by the High Court. In that case an application came to be filed by the mother of the child under section 7 and 25 of the Guardians and Ward Act which came to be dismissed as against which the SLP was filed before the Apex Court. In that case, the contention was that the minor girl was of tender age and the appellant there in who was also a doctor would be better equipped to take care of the child. The Apex Court reiterated the well settled principle that the paramount consideration in such cases was the interest and well-being of the minor child. The Apex Court in facts of that case observed that after obtaining the custody of the minor child the respondent does not appear to have neglected the minor and to look after her needs and the child will happy in the respondents company. The Apex court also considered that no allegation other than the fathers purported apathy toward the minor has been leveled against the respondent. In that facts of the case, the Apex court held that the interest of the minor child would be best served if she remains with the father with the sufficient access to the respondent mother. In my reading of the said decision, the child was given in the custody of the father as there was no allegations as against the father that he was ineligible to look after the minor child and as regards the girl child attaining age of puberty the respondent father there in had arranged for his elder sister to come and stay with her and to attend the minor child during her. In the facts of the present case, apart from the allegations of adultery which has been made there is no allegation that the respondent mother has been negligent in taking care of the child after the custody was handed over. In my opinion, the issue has to be decided in facts of each case and there cannot be in strait jacket formula as regards the custody of the child.
23. As regards the decision in the case of Karnataka High Court the guardianship of the minor child was given to the father, after coming to a finding, that the mother appears to have given more priorities to an illicit relationship. As Page 28 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined indicated above it is only in the facts and circumstances of each case that the issue as regards the custody of the child can be decided. In the present case, apart from one or two stay incidents which took place during the subsistence of the marriage there is no material produced on record to demonstrate that even after the custody was shifted from the petitioner father to the respondent mother, the respondent mother has neglected the child and priority was given to her alleged illicit relationship.
24. As regards the decision in the case of Nil Ratan Kundu v. Abhijit Kundu the said decision has been pressed in service to support the proposition that if the minor is old enough to form an intelligent preference the Court may consider that preference. In that case the Apex Court was considering and Appeal Filed against the Judgment and order passed against the guardianship petition and as such the entire evidence was before the Court. The Apex Court has considered the various provisions of the guardianship Act and the decisions on the subject and has held on overall considerations that the courts were not justified in granting the custody of the child to the respondent father without applying relevant well settled principles. However, in my view, the wishes of the child can be taken into consideration but cannot form the solitary reason for grant of custody."
8. We are perused the materials placed on record and considered the submissions canvassed on behalf of both the sides. We have considered the averments made in the appeal and also gone through the impugned order passed by the trial Court and the decisions cited at the Bar.
9. On perusal of the record and proceedings of the case, it emerges that the present appellant is appearing as party-in- person, who had filed an application under the Guardians and Page 29 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined Wards Act seeking custody of the daughters before the trial Court. It reveals that the husband and wife have no cordial relationship and they have separated and resided separately since long and the daughters are at present living with the mother i.e. respondent and therefore the present appellant had preferred an application for getting custody of the minor daughters before the trial Court. However, being aggrieved by the order passed by the trial Court, the appellant has preferred the present appeal seeking custody of the minor daughters. On perusal of the record, prima facie we find that the serious allegations were made against the concerned learned Judge by the appellant with regard to the demand of illegal gratification etc and he has raised his grievance before the learned Principal Judge, Family Court, Vadodara. On 19.06.2021, the learned Principal Judge, Family Court, Vadodara has passed the office order No.44/2021 from transferring the case from learned Judge who passed the impugned order to another learned Judge, however, surprisingly, on 21.06.2021 again the case was placed before the very same learned Judge for final conclusion against whom the appellant has made an application for demand of Page 30 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined illegal gratification and the case was concluded by the same learned Judge. Thereafter, the learned Judge passed the impugned order and order on 29.07.2021 whereby the application filed by the appellant came to be rejected and allowed the prayer for visitation right was allowed. Considering the findings recorded by the trial Court, we are of the considered opinion that though there was serious allegation of irregularity and illegality against the concerned learned Judge, the learned Principal Judge ought not to have again transferred the case to the very same learned Judge for further proceedings and on what reason, the learned Principal Judge has transferred the case to the same learned Judge against whom the allegation with regard to demand of illegal allegation was made. On perusal of the material on record, it appears that as and when the appellant had moved any applications, he had produced plethora of documents in support of his case which are not properly considered by the concerned learned Judge who tried the case. From bare reading of the impugned order, prima facie we are of the opinion that the concerned learned Judge has, with prejudice mind, decided the case against the appellant. Of course, the Page 31 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined concerned learned Judge has considered the conduct of the appellant on every occasion adversely and even not properly appreciated the evidence in its true and proper perspective. It reveals that earlier the appellant has approached this Court for issuance of writ of habeas corpus and when the minor daughters produced before the Court, the Court, prima facie, was of the opinion that since the daughters are minor, it is desirable that the minor daughters were residing with the mother. As the appellant raised voice against the wife with regard to work which she undertook, the number of proceedings were filed by and between the parties and some of them are at present pending either before this Court or before the trial Court.
10. Considering the facts and circumstances of the case and the reasoning and the findings given by the trial Court, we find that the trial Court has not properly considered the facts in light of the materials available on record. Therefore, it is pertinent to refer to the decisions of the Hon'ble Supreme Court in the case of Commissioner of Income Tax - I Vs. Rashtradoot (HUF) reported in (2019) 5 SCC 149 and in the case of State of Orissa and others Vs. Chandra Nandi reported in (2019) 4 Page 32 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined SCC 357.
11. In the case of Rashtradoot (HUF) (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.13 and 14 as under:-
"13. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.
14. In order to decide as to whether the impugned order is legally sustainable or not, the Appellate Court is entitled to know as to what impelled the Court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See- State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).
12. In the case of Chandra Nandi (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.9 and 10 as under:-
"9. The need to remand the case to the High Court has occasioned because from the perusal of the impugned order, we find that it is an unreasoned order. In other words, the High Court neither discussed the issues arising in the case, Page 33 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined nor dealt with any of the submissions urged by the parties and nor assigned any reason as to why it has allowed the writ petition and granted the reliefs to the writ petitioner which were declined by the Tribunal.
10. This Court has consistently laid down that every judicial or/and quasi judicial order passed by the Court/Tribunal/Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court/Tribunal/Authority for reaching to such conclusion. (See State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).
13. Now, considering overall facts and circumstances of the case and aforesaid decision of the Hon'ble Supreme Court and on perusal of the impugned order, it clearly transpires that the trial Court has not properly appreciated the entire evidence on record and has not taken into consideration the relevant aspects of the case and even the impugned order passed by the trial Court cannot be sustained in the eye of law.
14. In view of the foregoing discussion, we allow the appeal in part. The impugned judgment and order dated 29.07.2021 Page 34 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023 NEUTRAL CITATION C/FA/1775/2023 JUDGMENT DATED: 11/12/2023 undefined passed by the learned Judge, Family Court No.4, Vadodara is quashed and set aside and remand the case to the Family Court to decide the application filed by the appellant afresh on merits in accordance with law. It is expected that the concerned learned Judge shall decide the said application as expeditiously as possible preferably within a period of three months. Record and proceedings of the case be transmitted back to the concerned trial Court forthwith.
15. Pending all civil applications shall stand disposed of accordingly.
(ASHUTOSH SHASTRI, J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 35 of 35 Downloaded on : Tue Dec 12 20:41:21 IST 2023